Bill would offer more protection to pregnant workers

Andrea K. Walker, The Baltimore Sun

When Peggy Young became pregnant with her third child, she said a supervisor told her she was a liability and not to come back to work as a UPS package delivery driver in Landover until she had the baby.

"I was very upset because I wanted to work; I was willing to do my regular job," she said in a telephone interview Friday.

Her midwife had written a letter saying she couldn't lift more than 20 pounds, but Young said she was willing to do her regular duties if management wouldn't give her less strenuous work.

Young sued UPS six years ago for discrimination and to recoup money for lost health benefits the company denied her while not working, but lost. Most recently, judges in the 4th U.S. Circuit Court of Appeals ruled against her in January, saying there was no discrimination.

Young plans to petition the Supreme Court, but in the meantime, her case caught the eye of Maryland lawmakers who hope to remedy the problem at the state level.

Legislation close to passing the General Assembly seeks to strengthen the rights of pregnant women in the workplace. Companies would have to adjust the duties of women who can't perform their normal jobs because they are pregnant, under the legislation that easily passed in the House of Delegates on Wednesday.

The legislation, which awaits passage in the Senate, would require businesses to allow women to do less strenuous jobs because their current work might harm the expectant mom or her baby. It also would require employers to make other reasonable accommodations for pregnant workers, such as use of a chair while working.

Women would be required to show proof from a doctor or other health care professional that they need to ease off their regular work.

"This law offers stronger protection for pregnant workers," said Del. Tom Hucker, a Montgomery County Democrat who introduced the bill in the house. "We want to keep these cases out of court."

Young believes federal law should have protected her but welcomes the state legislation.

"I believe they should have let me work under the current law, but they do need to do something for pregnant women," she said. "God chose us to have kids. ... And you shouldn't be made to choose whether you want to have a baby or work."

The legislation is supported by women's groups that say federal laws meant to protect pregnant women aren't strong enough. Courts across the country have ruled against women like Young who have sued based on federal pregnancy discrimination and disability laws, they say.

"There is no explicit law in the state to protect pregnant workers and federal law is unclear," said Joanna Diamond, public policy analyst at the ACLU of Maryland. "Right now, pregnant workers can be treated worse than other employees."

Business groups say the bill is overreaching.

"We believe that this bill is overly intrusive in the employer-employee relationship and how businesses should run," the Maryland Chamber of Commerce wrote in a position paper.

The group said women are protected under the federal Americans with Disabilities Act and Equal Employment Opportunity Commission's guidelines. The chamber argues that under federal law a pregnant employee is treated the same way as any other temporarily disabled employee.

"We think it is completely unnecessary," said Deriece Pate Bennett, the chamber's vice president of government affairs, in a phone interview. "It is already pre-empted by federal law. It is up to the employer and employee to have that conversation on a case-by-case basis on what needs to be adjusted in the workplace, and it shouldn't be mandated."

Emily Martin, vice president and general counsel of the National Women's Law Center, said judges have interpreted the pregnancy discrimination laws in ways that end up being unfavorable to pregnant women.

The federal Pregnancy Discrimination Act says that pregnant women should be treated as well as other workers "similar in their ability or inability to work."

Judges interpret that differently, Martin said. For instance, some have ruled employers only have to accommodate pregnant workers who are injured on the job.

"The problem is the law is a little unclear, and therefore some courts have held that pregnant employees aren't entitled to these sorts of accommodations," Martin said. "And some employers aren't clear that they have obligations to accommodate pregnant women.

"What the Maryland law would do is provide greater clarity," Martin said.

Young worked at UPS as an early-morning driver, required to be able to lift 70 pounds. But she said her work usually involved light envelopes and she had worked out an agreement with co-workers to take heavier items. Her lawyer argued in court papers that the weight requirement operated to discriminate against women, particularly those who were pregnant.

Young had planned to work until she went into labor, as she did with her second child. She also hoped to use health benefits through UPS, rather than her husband's military insurance, which required her to drive an hour to the nearest eligible hospital.

Court documents noted that UPS made accommodations and offered benefits for others who were temporarily not able to do their jobs. Young's lawyer also argued that a pregnant black co-worker had been allowed to go on light duty, indicating UPS didn't apply the rules consistently.

Official UPS policy limited light duty work to those injured on the job, those considered disabled under the American With Disabilities Act and those who had lost federal transportation certification. Young's attorney argued pregnant women also should be protected under the Pregnancy Discrimination Act.

In their opinion, the 4th Circuit judges wrote that allowing pregnant women light duty would mean giving them special treatment. A worker who injured himself outside of work — say, lifting an infant — would not be eligible for light duty.

"We therefore adhere to the majority view that where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the" Pregnancy Discrimination Act, the opinion read. "The UPS policy at issue is not direct evidence of pregnancy-based discrimination."

In a statement, UPS said: "The courts have validated that UPS policy for temporary alternate work assignments does not discriminate against pregnant workers or violate the Americans with Disabilities Act. UPS did not discriminate against Peggy Young."

A final vote on the Maryland pregnancy bill in the Senate is expected this week.

During debate on the Senate floor Friday, Sen. E.J. Pipkin, a Republican representing the upper Eastern Shore, questioned the need for the state legislation, given the federal law. But Sen. Jamie Raskin, a Montgomery County Democrat, pointed out that the need for state protection became apparent after the decision in Young's case.

Pipkin also voiced concern that employers are being buried with regulations and mandates, noting that the Chamber of Commerce called the proposal "burdensome and unnecessary." He also suggested the legislation might lead employers to avoid hiring women of child-bearing age to avoid needing to accommodate them should they become pregnant.

Raskin countered that the bill simply tries to ensure that employers confer with their pregnant employees.

"In the real world, people go and talk about it," he said.

California has a similar law, Raskin said, and discrimination complaints there have declined. He said women's business organizations support the legislation, which he said was simply "common sense."

"This addresses a really important need," Martin said. "Too often, pregnant workers, especially in low-wage jobs, are being forced out of work at the very moment that they really need their income and job security — when their families are growing."